Section 138 cheque complaint maintainable without express debt averment; witness-list omission was only a curable irregularity.

A complaint under Section 138 of the Negotiable Instruments Act is not rendered unsustainable merely because it does not expressly state that the cheque was issued in discharge of a legally enforceable debt, since the presumption under Section 139 operates in favour of the holder unless rebutted. The complaint remained maintainable because it otherwise disclosed the ingredients of the offence. Omission to file the list of prosecution witnesses with the complaint before issuance of process under Section 204 CrPC was treated as a curable procedural irregularity, not a jurisdictional defect, and no prejudice or failure of justice was shown. The petition to quash the process order was dismissed.

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Issues: (i) Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 was not maintainable merely because it did not expressly aver that the cheque was received in discharge of a legally enforceable debt or liability; (ii) Whether omission to file the list of prosecution witnesses along with the complaint, before issuance of process under Section 204 of the Code of Criminal Procedure, 1973, vitiated the proceedings.

Issue (i): Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 was not maintainable merely because it did not expressly aver that the cheque was received in discharge of a legally enforceable debt or liability.

Analysis: The statutory scheme creates a presumption in favour of the holder of a cheque under Section 139 of the Negotiable Instruments Act, 1881 that the cheque was received for the discharge of a debt or other liability, unless the contrary is proved. The absence of an express averment in the complaint, by itself, does not defeat maintainability where the complaint otherwise discloses the ingredients of the offence and the presumption operates in law.

Conclusion: The objection to maintainability was rejected and the complaint was held to be sustainable; the finding is against the petitioner.

Issue (ii): Whether omission to file the list of prosecution witnesses along with the complaint, before issuance of process under Section 204 of the Code of Criminal Procedure, 1973, vitiated the proceedings.

Analysis: The requirement to furnish a list of prosecution witnesses is procedural and its breach is treated as an irregularity, not a jurisdictional defect. Such omission does not vitiate the proceedings unless prejudice or failure of justice is shown. The defect was also capable of being cured before the complainant led evidence, and the protection of Section 465 of the Code of Criminal Procedure, 1973 applied.

Conclusion: The omission was held to be a curable irregularity and not a ground to quash the proceedings; the finding is against the petitioner.

Final Conclusion: The petition seeking quashing of the process order was found to be without merit and was dismissed, leaving the complaint and the order issuing process intact.

Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, the statutory presumption under Section 139 can sustain the complaint even without an express averment of legally enforceable debt, and a procedural defect in not filing the witness list at the stage of issuing process is only a curable irregularity absent demonstrated prejudice.

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